Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011)

Mme President,

1. I thank the Council for the opportunity to present my latest report on my Office's activities in relation to the situation in Libya. Before I do so, allow me to congratulate the Republic of Poland for holding the Presidency of the Security Council during the month of May, and to thank you for presiding over today's briefing.

Mme President, Your Excellencies,

2. In 2017, I announced before this august body that Libya is a priority situation for my Office. I am pleased to inform you that since my last report in November 2017, my Office has made significant progress, including a return to investigations on the ground in Libya.

3. Despite this progress, significant challenges remain, including ongoing conflict and insecurity throughout Libya, which have had an adverse impact on our ability to progress swiftly with our investigations.

4. This ongoing conflict and instability continue to create a fertile ground for violence, and regrettably, the commission of atrocities.  I, hence, welcome the efforts of stakeholders in Libya to hold broad-based inclusive consultations aimed at breaking the long drawn political stalemate in an effort to stabilise and bring an end to conflict in Libya.

5. The efforts of those who continue to sow the seeds of further violence and discord are, first and foremost, at the expense of the suffering of the Libyan people.  I express my condemnation of the recent double suicide bombing of the headquarters of the Libyan National Election Commission in Tripoli just a few days ago on the 2nd of May that reportedly resulted in the deaths of at least 15 people and injured many others. 

6. Surely, Your Excellencies, accountability for the grave and destabilizing crimes under the Rome Statute and full respect for the rule of law are integral to sustainable peace, stability and development in Libya. 

7. My Office continues to do its part within the four corners of its mandate, notwithstanding the challenges inherent in undertaking our investigations and prosecutions in a situation of ongoing conflict, as is the case in Libya. 

8. I'm pleased to report that on the strength of our resolve and commitment, we are steadily progressing in our investigations into not only crimes committed in 2011, but also more recent and ongoing crimes.

9. As the Council is aware from previous reports, due to security considerations, my Office had not conducted investigative missions in Libya for over five years. During this time, my Office looked to innovative ways to continue its investigations and as a result, secured successes. That said, not being able to investigate on the ground in Libya was far from ideal. We have remained committed to sending our investigators to Libya and have looked for every opportunity to do so.  I am therefore pleased to report that in March 2018, members of my Libya team travelled to the country for our first mission on Libyan territory since June 2012.

10. This recent visit to Libya marks a significant advance in my Office's investigative activities. The value of the opportunity to work in the territory where alleged crimes have been, or are being, committed cannot be overemphasised. I am confident of the prospect of future missions to Libya which will offer renewed hope of more rapid progress in our investigative activities.

11. I would be remiss if I did not take this opportunity to express my deep appreciation to the Libyan Prosecutor-General's office for facilitating the mission in March and hosting my team.

12. The visit would also not have been possible without the invaluable logistical support of United Nations Support Mission in Libya ("UNSMIL"), and in particular the support of the Special Representative to the UN Secretary-General and Head of UNSMIL, Mr Ghassan Salamé, whom I had the privilege to personally meet in the margins of the Munich Security Conference in February of this year.  I am most grateful to him and his staff for their invaluable support and concrete assistance. I look forward to continued constructive collaboration with these key partners in Libya.

13. I equally take this opportunity to invite the Council to engage further with my Office to identify areas on which we can work together to advance the trinity of justice, peace and stability in Libya, within our respective and complementary mandates.

Mme President, Your Excellencies,

14. As the Council is aware, three public warrants issued in the Libya situation remain outstanding. Most recently, on 15 August 2017, Pre-Trial Chamber I issued a public warrant of arrest against Mahmoud Mustafa Busayf Al-Werfalli for his alleged role in committing or ordering seven executions that resulted in the murder of 33 people. The executions were filmed and graphically depicted in videos posted on social media.

15. The arrest warrant against Mr Al-Werfalli demonstrates my Office's commitment and capacity to quickly and effectively respond to alleged crimes that are increasingly being committed, as a result of social media, before our eyes. Investigators and prosecutors working under my supervision are able to gather and analyse evidence, and, where reasonable grounds exist, apply for a warrant within a short time period. The expeditious issuance of public warrants can be essential in circumstances where a deterrent effect may be achieved. 

16. However, this desired deterrent effect can only go so far. Greater deterrence can only be assured through the arrest and surrender of suspects to the ICC so that they may answer the charges against them. This, Your Excellencies, is critical.

17. The case of Mr Al-Werfalli demonstrates the crucial importance of the timely arrest and surrender of individuals subject to ICC warrants of arrest. You are certainly aware that despite being the subject of an ICC arrest warrant, Mr Al-Werfalli remained at large and appears to have continued to act as a commander in the Al-Saiqa Brigade.

18. Regrettably, there are now credible allegations that in the period since the warrant was issued, he has committed further murders which may be prosecuted by my Office as war crimes under the Rome Statute.

19. Since the issuance of the warrant last year, I have repeatedly called on the Libyan national authorities to comply with their obligation to arrest and surrender Mr Al-Werfalli to the ICC.

20. I have also specifically called on General Khalifa Haftar, Commander of the Libyan National Army, otherwise knowns as the LNA and superior of Mr Al-Werfalli, to cooperate with the Libyan authorities to enable and facilitate his arrest and surrender. 

21. ICC suspects who are indicted with charges of grave crimes under the Rome Statute cannot be sheltered or given refuge.  They must be apprehended and face justice before the Court so that their guilt or innocence can be established.  The Libyan people deserve answers. The victims of atrocity crimes in Libya deserve to have justice done and see that it is genuinely done.

22. I have also appealed to all States, including members of this Council, to assist in effecting Mr Al-Werfalli's immediate arrest and surrender to the Court.

23. Notwithstanding, to date Mr Al-Werfalli has not been surrendered to the Court. What is further troubling is that on 24 and 25 January 2018, photographs and video footage emerged on social media that appear to depict Mr Al-Werfalli brutally murdering ten people in front of the Bi'at al-Radwan Mosque in Benghazi. At the time of their deaths, these people were blindfolded with their hands tied behind their backs. This horrific execution was reportedly carried out in retaliation for the equally horrific bombing carried out by unknown perpetrators at the same mosque the day before. These two bombings resulted in the killing of at least 34 people, including children, and the wounding of over 90 others.  These are all terrible crimes.

24. As I made clear in my public statement on the 26th of January, the bombings in front of the Bi'at al-Radwan mosque, as well as the execution of ten persons in apparent retaliation, demand condemnation from us all. They also demand action to prevent further atrocities which claim the lives of Libyan citizens.

25. My Office continues to closely monitor the volatile situation in Libya, including in and around Benghazi. I will not hesitate to file new applications for warrants of arrest in relation to the Libya situation, including crimes in Benghazi, where there are reasonable grounds to believe that crimes within the jurisdiction of the Court have occurred, and the evidence supports such action.

26. The LNA has claimed that they are investigating Mr Al-Werfalli in relation to this most recent execution. In August 2017, the LNA also publicly stated that it was investigating Mr Al-Werfalli for the alleged executions that are included in the ICC warrant of arrest.

27. In light of the additional murders allegedly committed by Mr Al-Werfalli, which were filmed and shown on social media, these claims simply do not appear credible.

28. In my November 2017 report to the Council, I expressed my concern that the continued failure to secure the arrest and surrender of ICC suspects in Libya emboldens those already committing crimes. Mr Al-Werfalli's immediate arrest and surrender is now more important than ever, not only for him to answer for his alleged crimes, but to also send a clear message to would-be perpetrators that such reprehensible crimes will not be tolerated and that there will be real consequences for the commission of such crimes.

29. I repeat my call to this Council to engage with my Office and lend your support in assisting with strategies for the arrest and surrender of ICC fugitives in Libya. Once again, I appeal to all States, including members of this Council, the Libyan authorities and the LNA, to facilitate Mr Al-Werfalli's immediate arrest and surrender to the Court. 

Mme President, Your Excellencies,

30. Turning to the other Libyan cases, reports about Saif Al-Islam Gaddafi's whereabouts have appeared in the media. These reports often present conflicting accounts about whether or not he continues to be detained in Libya.

31. Regardless of Mr Gaddafi's custodial status, I take this opportunity to reiterate that the ICC warrant of arrest against him remains outstanding and that Libya continues to be under an obligation to immediately surrender him to the Court.

32. I call on the Libyan authorities to take all necessary steps to have Mr Gaddafi surrendered to the Court in accordance with Libya's international legal obligations, the Court's rulings, and repeated calls by members of this Council.

33. The warrant of arrest against Al-Tuhamy Mohamed Khaled, former head of the Libyan Internal Security Agency, also remains outstanding. This warrant was issued in April 2013 and made public in April 2017. Despite efforts by my Office, in cooperation with other organs of the Court, Mr Al-Tuhamy remains at large. Without assistance and reliable information from States, persons or other entities in a position to assist, it will be difficult to ensure his surrender to the Court.

34. Without arrests, both the cause of international criminal justice in Libya and the very raison d'être of UN Security Council Resolution 1970 will be undermined.

Mme President, Your Excellencies,

35. Cooperation remains a cornerstone of the Rome Statute legal framework and the effective functioning of the Court.

36. My Office continues to engage with States and relevant organisations to exchange information, where possible and assist national authorities carrying out investigations and prosecutions of crimes relating to Libya. This is in the spirit of complementarity as enshrined in the Rome Statute, and specifically foreseen under article 93.10 of the Statute.

37. This approach is also in line with Goal 9 of my Office's Strategic Plan for 2016-2018. Strategic Goal 9, in our parlance, seeks to develop, with relevant judicial actors and with full respect of respective mandates, a coordinated investigative and prosecutorial strategy to close the impunity gap for Rome Statute and other serious crimes that foster further insecurity in Libya.

38. Recently, there has been a focus on crimes relating to human trafficking and abuses against migrants. This engagement allows for more collaborative efforts to gather and analyse information, and helps identify which of the judicial actors is in the best position to investigate or prosecute alleged crimes.

39. I take this opportunity before the Council to offer the support and expertise of my Office to States and organisations engaged in combating criminality in Libya and across its borders, where a symbiotic relationship in the fight against impunity can be fostered.

40. In addition to Libya, my Office continues to receive significant support from a number of other States, including Italy, The Netherlands, Tunisia, and the United Kingdom, as well as regional and international organisations, such as INTERPOL, and many non-governmental organisations.

41. Cooperation from Libya, States Parties and non-States Parties, as well as support from this Council, are vital to achieving progress in the cases before the Court and to the rapid progress of our ongoing investigations. The exemplary efforts of a number of States and organisations are worthy of emulation with the end goal of reversing the trend of violence and impunity for serious crimes in Libya.

Mme President, Your Excellencies,

42. Even though my Office is making important progress, significant challenges remain.

43. The volatile security situation in Libya is exacerbated by the ongoing armed conflict between militias in many parts of the country. As I highlighted in my fifteenth report, there continue to be extra-judicial killings, high civilian casualties and systematic use of arbitrary detention of individuals, who are often subjected to serious violations of human rights.

44. I am also concerned by the large numbers of migrants held in detention centres – whether run by the national authorities or by militia. Migrants are reportedly killed, abused and mistreated while in detention and in transit.

45. I also remain extremely concerned by the reports of slave auctions in Libya. That such abhorrent acts could occur in the 21st century is an insult to the memories of victims of bondage of the past, and an assault on the oneness of humanity and the historical progress made to eradicate these callous acts.

46. I reiterate that my Office continues to be seized of the Libya situation and our investigations are ongoing.  I also benefit from this occasion to state that we expect we will be in a position to apply for warrants of arrest against other suspects in the near future.

Mme President, Your Excellencies,

47. Let me conclude by reiterating my appeal to this Council to demonstrate its commitment to the pursuit of justice in Libya by fulfilling its responsibility to facilitate the provision of financial support as envisioned under article 115(b) of the Rome Statute as well as practical support to my Office.

48. This support is needed now more than ever as my Office forges ahead with the ever-challenging task of executing its mandate under the Rome Statue, as triggered by the Council in Resolution 1970, some seven years ago.

49. This responsibility includes leveraging the Council's unique authority, under international law, to ensure the timely execution of the Court's decisions and, in particular, the execution of ICC arrest warrants.

50. Seeking justice for those in Libya who are victims of crimes under the Rome Statute will remain a priority for my Office. We remain determined to fulfil the responsibility this Council entrusted to my Office, with the Rome Statute as our guide. 

51. My Office will do its part, but our work alone is not enough. We have a collective responsibility to cultivate a culture of accountability for Rome Statute crimes in Libya and to deter the commission of future crimes. The tragic consequences of a failure to do so are well known to us all.

52. I count on your support, and I thank you for your time and attention.

Fifteenth  report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UNSCR 1970 (2011)